DICK YAW NSIAH vs. NANA MBEAH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KOFORIDUA - A.D 2016
DICK YAW NSIAH - (Plaintiff/Appellant)
NANA MBEAH - (Defendant/Respondent)

DATE:  8TH JUNE, 2016
SUIT NO:  H1/06/2016
JUDGES:  ADJEI J.A, SOWAH J.A, MENSAH J.A
LAWYERS:  K. AMOAKO ADJEI ESQ. WITH HIM SULEMANA MUSAH ESQ. FOR THE PLAINTIFF/APPLICANT/APPELLANT.
WIAFE DANKWA ESQ FOR THE DEFENDANT/RESPONDENT/RESPONDENT
JUDGEMENT

 

ADJEI,J.A:

The High Court Koforidua on 2nd December, 2014 dismissed an application for interlocutory injunction filed by the Plaintiff to restrain the Defendant, his agents, privies, assigns and representatives from entering unto the land, subject matter in dispute. The Plaintiff dissatisfied with the ruling by the High Court filed an appeal against the said ruling to this Court on 22nd December, 2014. The Plaintiff /Appellant and the Defendant /Respondent shall maintain their respective designations at the court below for convenience and ease of reference.

 

The brief facts of the matter before the trial High Court which has culminated in this interlocutory appeal were that the Plaintiff acquired a parcel of land situate ,lying and being at Kyekyewere-Beposo near Suhum and bounded by the properties of Prempeh, Yawtse, Gyamfua and the Kumasi - Accra motor road from the Borby family of Suhum acting by the head of family Kofi Borby with the consent and concurrence of the principal members of the said family. A deed of conveyance was executed in favour of the Plaintiff by the Borby family and was subsequently registered by the Lands Commission with registry number 4/2001. The Plaintiff took effective possession of the land after its acquisition and was in undisturbed possession until 2013 when the Defendant entered unto the land and asserted ownership to same. The Defendant on the other hand claims that his stool acquired the land from the Akwamus through conquests several centuries ago and all the people occupying portions of the acquired land including Borby's family are licencees to the stool. The Defendant claims that on noticing the Plaintiff on the land, he warned him to abate his trespassory act by vacating the land peaceably but the Plaintiff failed to comply with his directives.

 

The trial High Court Judge dismissed the Plaintiff's application on the basis that the Defendant is acting on behalf of his stool and the stool wanted to develop the land for the benefit of the people in the community and therefore the communal interest should override the Plaintiff's individual interest. It was further held that payment of compensation to the Plaintiff would address any injury that the Plaintiff may suffer and the trial judge accordingly dismissed the Plaintiff's interlocutory application for injunction. The Plaintiff dissatisfied with the principles and the reasoning behind the ruling by the trial High Court Judge appealed against the said ruling to this Court for same to be reversed and his prayer granted. There are two grounds of appeal and they are that the ruling is against the weight of evidence and, furthermore, the judge erred in relying on extraneous matters not canvassed by the Defendant.

 

An appellant who alleges that a ruling is against the weight of evidence on record is inviting the appellate court to rehear the appeal and come to the conclusion that the trial judge erred when he heard the application. The duty is on the appellant to demonstrate the errors committed by the trial court. The errors as in the case in point may be wrong application of law or fact or both and if the said errors are corrected, it should lead to the reversal of the ruling. We shall discuss both grounds of appeal together as the ground (b) which alleges that the trial judge took into consideration extraneous matters could be discussed under the omnibus ground that the ruling is against the weight of evidence on record.

 

The basic consideration for the grant of interlocutory injunction in all cases is where it appears to the Court to be just and convenient to grant. This position has been codified in Order 25 rule 1(1) of the High Court (Civil Procedure ) Rules ,2004 C.I. 47 thus:

 

The Court may grant an injunction by an interlocutory order in all cases in which it appears to the Court to be just or convenient to do so , and the order may be made either unconditionally or upon such terms and conditions as the Court considers just".

 

What is just and convenient as a guiding principle in granting an application for interlocutory injunction simply means a duty is imposed on the court to protect the interest of an applicant with a right either at law or in equity and whose said rights if not protected would suffer irreparable injury. The first principle is that the courts must consider whether the applicant has a right either at law or in equity and secondly, the hardship a person with such right may suffer if the application is not granted to protect the Applicant’s said right The effective combination of the two principles stated above will lead to the preservation of the status quo ante, that is the grant of the application for injunction would not occasion injustice to a person with a right in the subject matter. Where there is the need to protect the subject matter from development until the final determination of the case, the court may do so by preserving the status quo ante. The Supreme Court in the case of Owusu v Owusu - Ansah and Another [2007-2008] 2SCGLR 870 discussed the guiding principle in determining the grant of interlocutory injunction at page 875 thus:

 

"While agreeing that in an interlocutory application for an interim relief, the court ought to refrain from expressing an opinion on the merits of the case before the hearing, we are of the view that this does not absolve the trial court from considering the material before it in order to guide it to either grant or refuse the request before the court . The guiding principle in such application is, whether an applicant has , by his pleadings and affidavit established a legal or equitable right , which has to be protected by maintaining the status quo until the final determination of the action on its merits...".

 

The basic principles governing the grant of interlocutory injunction have been expressed in different forms but in substance they are the same. In some cases, the principle to determine the grant or refusal of an interlocutory injunction is whether there is a serious question to be tried. This principle is the same as whether there is a right at law or in equity to protect and the hardship the applicant would suffer if the application is not granted. In the English case of American Cyanamid Co v Ethicon Ltd [ 1975] 1 All ER 504 the House of Lords speaking through Lord Diplock used the test that is whether the applicant's claim is neither frivolous nor vexatious or put differently whether there is a serious question to be tried between the parties.

 

We would now address the position taken by the trial High Court Judge in dismissing the application for the interlocutory injunction. The trial High Court judge in dismissing the application for interlocutory injunction used his own approach that is the precedence of community interest over individual interest. He held thus:

 

"The Plaintiff alleged that he acquired the land since 2000 to develop into a filling station . If the defendant is claiming that the land belongs to the stool and the stool wanted to do a project on the land to benefit the whole community, then I think the development for the benefit of the community here should override the individual interest. However, the individual interest cannot be trampled on without the necessary constitutional fundamental human right of the individual being addressed. This is payment of compensation".

 

 

 

The law is that the grant or refusal of interlocutory injunction is discretionary but the discretion shall be exercised in accordance with law. The law on the grant or refusal of an interlocutory injunction has never given priority to community interest over an individual interest but the test is whether or not the applicant's claim is neither frivolous nor vexatious and has a right in either at law or in equity and must be protected . And where it is not protected to maintain status quo the applicant shall suffer irreparable injury. It has never been the law that community interest should take precedence over the individual interest and the remedy available to the individual may exit in compensation. An individual may win a case against a stool, community or the State and the principles applied by the trial High Court Judge by given priority to community interest over that of the individual was wrong. Where a general principle of law is wrong as appears from the decision of the trial High Court such principle of law should not be allowed to stand. In the case of Boateng (No2) v Manu (No 2) & Another [2007-2008] 2 SCGLR 1117 the Supreme Court held that the law has never been that community interest is superior to individual interest and individual interest should always give way to community interest. The Court in holding 4 of the headnote stated thus:

"The allegation made by the plaintiff -appellant in his evidence at the trial court that oman or the entire township where the disputed land was situate could grab any land belonging to a family because the town has to be developed is untenable ."

 

From the above, the principle used by the trial High Court Judge to determine the application for interlocutory injunction was wrong. The law is that a decision delivered on improper exercise of discretion should be set aside. In the case of Blunt v Blunt [1943] AC 517 at 518, the House of Lords discussed the effect of improper exercise of discretion in a matter thus:

 

"An appeal against the exercise of the court's discretion may succeed on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account."

 

This decision has been quoted in several Ghanaian decisions with approval and was affirmed by the Supreme Court in the case of Owusu v Owusu Ansah and Another (supra). The trial High Court Judge’s attention was not drawn to article 20 of the Constitution of Ghana,1992 which prevents the State from dispossessing an individual of his interest in land without acquiring it in accordance with law. From the pleadings and the respective affidavits filed by the parties, it will be in the interest of justice to preserve the status quo in other that the plaintiff may not suffer an irreparable injury as a result of the grant of the application for interlocutory injunction. We would set aside the ruling by the trial High Court Judge as having applied wrong principles of law to influence his ruling.

 

An appeal validly filed confers power on the appellate court and in the case in point, the Court of Appeal to rehear the matter. Rule 8(1) of the Court of Appeal Rules 1997 C.I.19 provides that where notice of appeal is filed within the time prescribed by law it will confer on the Court of Appeal the power to rehear the matter that was before the trial court.

 

An injunction application is determined by the respective pleadings of the parties, the affidavits filed and the exhibits attached to them where there is any. The Plaintiff in his pleadings has demonstrated that he has a right at law and exhibited a registered conveyance which is in his name. The Plaintiff has further demonstrated evidence of possessory title and has therefore satisfied us that he has a right at law which this Court must protect to preserve the status quo. We are satisfied that the Plaintiff by his pleadings and affidavit and the exhibits attached to has established a right and we are inclined to protect his said right. From the evidence, the Defendant who claims to be owner of the land in dispute has determined to use the land for developmental projects and if he is not restrained from using the land for his developmental projects, it will change the nature of the use of the land as deposed to by the Plaintiff in this affidavit and thereby cause irreparable injury to the Plaintiff who is in possession of the land. We shall hold the scale of justice evenly to ensure that justice is meted out to both parties in the case.

 

We hereby set aside the ruling of the High Court Koforidua delivered on 2nd December, 2014 and grant an order for interlocutory injunction to restrain the Defendant, his agents, servants, privies and any person claiming title through him from interfering with the disputed property until the final determination of the substantive matter before the High Court. The appeal succeeds on both grounds and we further recommend to the Lady Chief Justice to transfer the matter to the High Court differently constituted to ensure that justice is done in this matter.

 

 

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